The Labor enquirer., 1887-05-14
FREE SPEECH AND rREss.
Opinion Of Thomas N. Cosley, the Great
+ = ConstitutionalL Lawyer, New Chair
man fthe Interstate Com.
merce Commission.

man OF the Interstate Com.
merce Commission.
At the common law it was indictable to
publish anything against the constitution
of the country, or the established system
Of government. The basis of such pros
ecution was the tendency Of publications
of this character to excite disaffection
with the government, and thus induce
revolutionary spirit. The law always,
however, allowed calm and temperate
discussion of public events and measures,
and recognized in every man right to
give every public matter a candid, full
and free discussion. 1t was only when
publication went beyond this and tended
to excite tumult that it became criminal.
1t cannot be doubted, however, that the
common-law rules on this subject were
administered in many cases with harsh
ness, and that the courts, in the interests
of repression and at the instigation of
the government, often extended them to
cases not within their reasons. This was
especially true during the long and bloody
struggle with France, at the close of the
last and beginning of the present century
and for few subsequent years, until a
rising public discomfort with political
prosecutions began to lead to acquittals,
and finally to abandonment of all such at
tempts to restrain the free expression of
sentiments on public affairs. Such prose
cutions have not altogether ceased in En-
gland. Like the censorship of the press,
they have fallen out of the British consti-
tutional system. When the press errs, it
is by the press itself that its errors are
left to be corrected. Repression has ceased
to be the policy of rulers, and statesmen
have at length realized the wise maxim of
Lord Bacon, that "the Furnishing of wits
enhances their authority, and forbidden
writing is thought to be certain spark of
truth that flies up in the faces of them
that seek to tread it out"
We shall venture to express doubt if
the common-law principles on this subject
can be considered as having been practic-
ally adopted in the American States. 1t
is certain that no prosecutions could now
be maintained in the United States courts
for libels on the general government,
since those courts have no common-law
jurisdiction, and there is now no statute,
and never was except during the. brief ex-
istence of the sedition law, which assumed
to confer any such power.
The sedition law was passed during the
administration of the elder Adams, when
the fabric of government was still was
still new and untried, and when many men
seemed to think that the breath of heated
party discussions might tumble it about
their heads. its constitutionality was
always disputed by large party, and its
impolicy was beyond question. 1t had
direct tendency to produce the very state
of affairs it sought to repress; the prose
cutions under it were instrumental among
other things, in the final overthrow and
destruction of the party by which it was
adopted, and it is impossible to conceive,
at the present time, of any such state of
things as would be likely TO bring about its
re-enactment, or the passage of any simi-
lar repressive statute.
The English common-law rule which
made libels on the constitution or the gov
ernment indictable, as twas administered
by the courts, seems to US unsuited to the
condition and circumstances of the people
of America, and therefore never ought to
have been adopted in the several states.
If we are correct in this, it would not be
in the power of the state legislatures to
pass laws which should make mere criti-
cism of the constitution or of the measures
of government crime, however sharp,
unreasonable and incorporate it might be.
The constitutional freedom of speech and
of the press must mean freedom as
broad as existed when the constitution
which guarantees it was adopted, and it
would not be in the power of the legisla-
ture TO restrict it, unless it might be in
those cases of publications injurious to
private character, or public morals or
safety, which come strictly within the rea-
sons of civil or criminal liability at the
common law, but in which, nevertheless,
the common law as we have adopted 1t
failed to provide remedy.-C0oleys Con-
,titutional Limitations, Page 426.
The Law Of the Land.
BY the law of the land is most clearly